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Izquierdo v. Solar Bear Services Inc.

United States District Court, S.D. Florida, Miami Division

February 15, 2017

ALEYMER IZQUIDERO, on behalf of himself and all employees similarly situated, Plaintiff,



         THIS CAUSE came before the Court upon Plaintiffs' Motion to Authorize Notice to Potential Class Members (the “Motion”) [D.E. 30]. The Court has considered the Motion and the record, and is otherwise fully advised. For the reasons set forth below, the Motion is granted in part.

         I. BACKGROUND

         Plaintiff Aleymer Izquierdo (“Plaintiff”) brought this action against Defendant Solar Bear Services, Inc. (“Defendant”) for failure to compensate him and similarly situated employees overtime compensation in violation of the Fair Labor Standards Act, 29 U.S.C. §201, et seq. (“FLSA”). Plaintiff alleges that (1) Defendant employed him as an air conditioning technician, (2) he regularly worked over 40 hours per week, and (3) he was paid on a piece rate basis, receiving a specific amount of money from the company per installation as opposed to the number of hours worked. On November 14, 2016, Plaintiff filed the Motion seeking to certify a class consisting of “[a]ll current and former Solar Bear Air Conditioning Installers and Installation Helpers who worked at the company's Miami, Florida locations: 2013 N.W. 84th Avenue, Doral, Florida 33122 or 10125 N.W. 116th Way, Suite 10, Medley, Florida 33178 for any length of time since June 28, 2013.” [ECF No. 30-2]. In support, Plaintiff relies on multiple notices of consent to join and declarations. [ECF Nos. 6, 23, 24, 27, 28, 29, 30-3]. Defendant opposes the Motion, asserting Plaintiff has not met his burden of proof in order for the Court to certify the class.


         A. Legal Standard for Conditional Class Certification.

         The FLSA permits a plaintiff to bring a collective action on behalf of himself and other similarly situated employees. See 29 U.S.C. § 216(b). The purposes of § 216(b) collective actions are “(1) reducing the burden on plaintiffs through the pooling of resources, and (2) efficiently resolving common issues of law and fact that arise from the same illegal conduct.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1264-65 (11th Cir. 2008) (citing Hoffman-La Rouche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)). A class action brought under the FLSA, unlike a class action pursuant under Rule 23 of the Federal Rules of Civil Procedure, includes only those plaintiffs who affirmatively opt-in to the action by filing their consent in writing to the court in which the action is brought. See 29 U.S.C. § 216(b); see also De Leon-Granados v. Eller & Sons Trees, Inc., 497 F.3d 1214 (11th Cir. 2007). The decision to certify the action does not create a class of plaintiffs. Rather, the existence of a collective action under § 216(b) depends on the active participation of other plaintiffs. See Albritton v. Cagle's, 508 F.3d 1012, 1017 (11th Cir. 2007). The benefits of a collective action “depend on employees receiving accurate and timely notice… so that they can make informed decisions about whether to participate.” Id. (citing Sperling, 493 U.S. at 170). It is solely within the Court's discretion to grant conditional certification. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001).

         The Eleventh Circuit has sanctioned a two-stage approach to manage § 216(b) actions. Morgan, 551 F.3d at 1260. The first stage is commonly called the “notice stage” or “conditional certification.” Hipp, 252 F.3d at 1214. If the Court approves conditional certification, putative class members receive notice of the action and the opportunity to opt-in. Id. Regarding this first stage the Eleventh Circuit stated,

At the notice stage, the district court makes a decision - usually based only on the pleadings and any affidavits which have been submitted - whether notice of the action should be given to potential class members. Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in “conditional certification” of a representative class.

Id. (emphasis added). The second stage occurs if the Defendant moves to decertify the class, typically near the end or close of discovery. Morgan, 551 F.3d at 1261. At this stage of the litigation, the Court can make a more informed decision. Id. As a result, this stage is “less lenient, and the Plaintiff bears a heavier burden.” Id. (citing Anderson v. Cagle's, Inc., 488 F.3d 945, 953 (11th Cir. 2008).

         To grant conditional certification, the Court must find that there are other employees who (1) desire to opt-in to the action, and who (2) are “similarly situated” with regard to their job requirements and pay provisions. See Dybach v. Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991); see also Bennett v. Hayes Robertson Group, Inc., 880 F.Supp.2d 1270, 1282-83 (S.D. Fla. 2012). A plaintiff has the burden of showing a “reasonable basis” for his claim that there are other similarly situated employees who wish to opt-in. Morgan, 551 F.3d at 1260. “If the plaintiff does not satisfy his burden, the Court should decline certification of a collective action to ‘avoid the “stirring up” of litigation through unwarranted solicitation.'” Bedoya v. Aventura Limousine & Transportation Service, Inc., Case No. 11-CIV-24432, 2012 WL 1933553 at *5 (S.D. Fla. Apr. 10, 2012) (citing White v. Osmose, Inc., 204 F.Supp.2d 1309, 1318 (M.D. Ala. 2002)).

         B. Opt-In Employees.

         Plaintiff's burden to show that there are other “potential opt-ins is not onerous.” Rojas v. Garda CL Southeast, Inc., No. 13-CV-23173, 2013 WL 6834657, at *9 (S.D. Fla. Dec. 23, 2013). “[T]he existence of just one other co-worker who desires to join in is sufficient to ‘rais[e] the Plaintiff's contention beyond one of pure speculation.'” Bennett, 880 F.Supp. at 1283 (quoting Guerra v. Big Johnson Concrete Pumping, Inc., 2006 WL 2290512, at *4 (S.D. Fla May 17, 2006)) (holding evidence that at least one other employee desires to opt-in is the “minimum quantum of evidence” necessary to raise plaintiff's claim beyond one of pure speculation). Courts have conditionally certified classes with as few as two affidavits from potential plaintiffs. See Wynder v. Applied Card Sys., Inc., No 09-80004, 2009 WL 3255585, at *3 (S.D. Fla. Oct. 7, 2009). However, there must be more than “counsel's unsupported assertions that FLSA violations [are] widespread and that the additional plaintiffs would come” forward. Morgan, 551 F.3d at 1260-61 (citing Haynes v. Singer Co., 696 F.2d 884, 887 (11th Cir. 1983)).

         In support of certification, Plaintiff filed eleven notices of consent to join. [ECF No. 6, 23, 24, 27, 28, 29, 30-3]. This is more than sufficient to find that there are other employees ...

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